Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, Reported By REPORTED BY WILLIAM FORBES, ADVOCATE.

John Donaldson factor for the Earl of Panmure,
v.
the Magistrates and Town of Brechin

Date: 24 July 1706

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John Donaldson, factor for the Earl of Panmure, having charged the Magistrates of Brechin, for 1200 merks due to him by the town per bond, they suspended upon this reason, That the charger is guilty of usury for exacting more annual-rent than is allowed by law; and therefore the half of the sum belongs to the Magistrates as discoverers ; for which they repeated a declarator. And for instructing the reason of suspension and declarator, produced a discharge granted by the charger for L.45 Scots, as one year's interest of the debt. And to evince that the undue exaction was not through mistake, but of design, they pointed at a note written by the charger on the back of the discharge, bearing, that he allowed three quarters retention only.

Answered for the charger,—That he opponed the discharge, which bore, that retention was allowed conform to Act of Parliament, and the superplus more than the due annual-rent was only 20 shillings Scots, an inconsiderable fourty-fifth part of what was truly due : and the Lords are not to cognosce de minimis. And the taking thereof can only be imputed to an error or mistake in the calcul; for if he had had an usurary design, he would never have made his discharge so particular as to principal and annual-rent, but would have worded it so as the usury behoved to be otherwise proved than by the writ itself. Again, what is minuted on the back of the discharge is so far from inferring a presumption of usury, that it evinceth the contrary, viz. that how soon the charger was sensible of his mistake, he minuted on the back of the discharge that three quarters retention was only allowed, to the end the suspenders might be redressed at the next payment.

Replied for the suspenders.—In crimes of this sort, the animus delinquendi is to be noticed, which is certainly as great in small matters as in affairs of higher importance, if not greater; as it is the sign of the greater baseness and depravedness of spirit to commit usury for a small matter, than for a considerable sum, where the power of the temptation might in some measure alleviate the crime. But then majus et minus non variant speciem:. and our law sustained a criminal dittay of usury, for taking the Martinmas interest of fifty merks upon the 18th of July, in the case of Purdie, anno 1666; and the like, November 28, 1668, in the case of Hugh Roxburgh; as appears from the books of adjournal.

Duplied for the charger,—The two cases urged from the books of adjournal do not meet; for there annual-rent due at Martinmas was exacted in the preceding July, which could not receive a favourable construction, or be imputed to the creditor's mistake: whereas, to infer usury from such a minute escape in calculo as the charger's is, might pave the way for catching the most exact and honestest men.

The Lords found the charger not guilty of usury, and that there was only error in calculo.

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